Lear v. Poole

• Decision Date: 17 May 2010
• Docket Number: No. 06-CV-750.,06-CV-750.
• Parties: Gary T. LEAR, Petitioner,v.Thomas POOLE, Superintendent, Five Points Correctional Facility, Respondent.
• Court: U.S. District Court — Western District of New York

711 F.Supp.2d 288

Gary T. LEAR, Petitioner,v.Thomas POOLE, Superintendent, Five Points Correctional Facility, Respondent.

No. 06-CV-750.

United States District Court,

W.D. New York.

May 17, 2010.

Gary T. Lear, Romulus, NY, pro se.

Thomas H. Brandt, Lockport, NY, for Respondent.

ORDER

RICHARD J. ARCARA, District Judge.

This case was referred to Magistrate Judge Victor E. Bianchini, pursuant to 28 U.S.C. § 636(b)(1). Plaintiff filed a petition for a writ of habeas corpus on November 14, 2006, pursuant to 28 U.S.C. § 2254. August 17, 2009, after respondent answered the petition, petitioner filed a motion to amend his petition. On January 20, 2010, Magistrate Judge Bianchini filed a Report and Recommendation, recommending that petitioner's request for a writ of habeas corpus be denied.

Plaintiff filed objections to the Report and Recommendation on March 3, 2010.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions, the Court adopts the proposed findings of the Report and Recommendation.

Accordingly, for the reasons set forth in Magistrate Judge Bianchini's Report and Recommendation, petitioner's petition for a writ of habeas corpus is denied and the petition is dismissed.

In addition, because the issues raised here are not the type of issues that a court could resolve in a different manner, and because these issues are not debatable among jurists of reason, the Court concludes that petitioner has failed to make a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), and accordingly the Court denies a certificate of appealability.

The Court also hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. U.S., 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.

The Clerk of Court shall take all steps necessary to close the case

SO ORDERED.

REPORT AND RECOMMENDATION

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Pro se petitioner Gary T. Lear (“Lear” or “petitioner”) has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his custody, following a conviction by guilty plea in Niagara County Court. (Docket # 1). Subsequent to respondent filing his answer, Lear subsequently filed a motion to the amend the petition (Docket # 12), which is presently pending. Respondent answered the petition (Docket # 4, # 5) but has not filed any papers in response to the motion to amend.

This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1). (Docket # 11). For the reasons that follow, the Court recommends finding that none of the claims asserted by Lear in the Petition or the Proposed Amended Petition warrant habeas relief. Accordingly, the Court recommends denial, with prejudice, of both the Petition and the Motion to Amend.

II. Factual Background and Procedural History

In 2003, Lear pled guilty in Niagara County Court to one count of attempted course of sexual conduct against a child (“course of sexual conduct”) in the first degree (N.Y. Penal Law §§ 110.00 (attempt), former 130.75(1)(a), a class C violent felony), and one count of sexual abuse in the first degree (N.Y. Penal Law § 130.60(2), a class A misdemeanor). The guilty plea was in satisfaction of an indictment charging Lear with one count of first degree “course of sexual conduct”, one count of endangering the welfare of a child, and one count of second degree “course of sexual conduct”. The prosecution accepted the plea in full satisfaction of the indictment, and in return, dismissed a pending, unrelated grand larceny charge. The prosecutor agreed not to pursue potential sexual offense charges against Lear which involving two different female victims. At the time of the plea, the prosecutor did not take a position with respect to sentencing.

Six weeks later, at the sentencing hearing, petitioner moved to withdraw his guilty plea, alleging that “if I knew what some of these charges were, I would have never took [sic] the plea I took.” The trial court denied the motion to withdraw without a hearing.

Because Lear had a prior felony conviction on a sexual offense charge involving another young female victim, the trial court certified petitioner as a sexually violent predator and sentenced him to a determinate term of 15 years in prison on the “course of sexual conduct” charge, to be served concurrently with a one-year sentence on the misdemeanor. In addition, the court imposed a post-release supervision period of five years.

On direct appeal, Lear raised two claims: (1) that his plea was involuntary because the trial court failed to make a sufficient inquiry into the effect of his medication on his mental state; and (2) that his sentence was harsh and excessive. The Appellate Division, Fourth Department of New York State Supreme Court, unanimously affirmed his conviction in a memorandum decision and order. People v. Lear, 19 A.D.3d 1002, 1002-03, 796 N.Y.S.2d 293 (App. Div. 4 Dept.2003) (citations omitted). The New York Court of Appeals denied leave to appeal.

Lear subsequently filed a pro se motion to vacate the judgment pursuant to C.P.L. § 440.10 in the trial court, raising the grounds of grand jury evidence and indictment insufficiencies, the trial court erred in not finding petitioner to be incompetent to plead guilty, ineffective assistance of counsel, and his guilty plea was not knowingly and intelligently entered where he did not have the benefit of a hearing for the purpose of disproving certain allegations against him. The trial court denied the motion after reviewing the merits, and leave to appeal was denied.

III. General Legal Principles Applicable to Habeas Petitions

The federal habeas statute provides for habeas corpus review only where the petitioner has alleged that he is in state custody in violation of “the Constitution or a federal law or treaty.” 28 U.S.C. § 2254(a); accord Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”). As the Supreme Court has explained many times, “Federal habeas corpus relief does not lie for errors of state law.” Id. (citing Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (habeas corpus review not available to remedy alleged error of state law)); accord, e.g., Ponnapula v. Spitzer, 297 F.3d 172, 181 (2d. Cir.2002) (“It is well established that a federal habeas court does not sit to correct a misapplication of state law, unless such misapplication violates the Constitution, laws, or treaties of the United States.”) (citations omitted).

Under the 1996 amendments to federal habeas statute imposed by the Anti-Terrorism and Effective Death Penalty Act, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In other words, where the state court has “adjudicated the merits” of a petitioner's federal constitutional claim, habeas relief may not be granted unless the state court's ruling: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). AEDPA provides that “a determination of a factual issue made by a State court shall be presumed to be correct,” and requires that to the extent a habeas petitioner disputes such factual findings, the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

A motion to amend a petition for a writ of habeas corpus is generally governed by Federal Rule of Civil Procedure 15(a). Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2562, 2569, 162 L.Ed.2d 582 (2005); Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir.2001); see also Rule 11 of the Rules Governing Section 2254 Cases (“the Section 2254 Rules”) (“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.”). Because respondent has already served his answer, Lear requires permission of the Court to amend his habeas petition. Mayle, 545 U.S. 644, 125 S.Ct. 2562 (“Before a responsive pleading is served, pleadings may be amended once as a ‘matter of course,’ i.e., without seeking court leave.”) (quoting Fed.R.Civ.P. 15(a)).

In general, leave to amend “shall be freely given when justice so requires,” Fed.R.Civ.P. 15(a), and a pro se litigant in particular “should be afforded every reasonable opportunity to demonstrate that he has a valid claim,” Dluhos v. Floating & Abandoned Vessel known as “New York”, 162 F.3d 63, 69-70 (2d Cir.1998) (quotation omitted). Nevertheless, a motion to amend warrants denial where...